Beruflich Dokumente
Kultur Dokumente
DISTRICT COURT : BHANDARA
WORKSHOP
SUMMARY/GIST OF PAPERS OF
1 WORKSHOP HELD ON 26
st
th SEPTEMBER, 2015
Subjects : (1) Comparative and analytical study of
Sections 10 and 11 of the Code of Civil
Procedure and Section 115 of the Evidence
Act, and
(2) Test identification parade, appreciation
of evidence under sections 3 and 8 of
Evidence Act.
The workshop on the subjects (1) Comparative and analytical study of
Sections 10 and 11 of the Code of Civil Procedure and Section 115 of the
Evidence Act, and (2) Test identification parade, appreciation of evidence
under sections 3 and 8 of Evidence Act. was held on 26 th September 2015 at
District Court, Bhnadara under the Chairmanship of Hon'ble Principal District
and Sessions Judge, Bhandara. The discussion was opened by reading the
summary of paper on the subject “ Comparative and analytical study of
Sections 10 and 11 of the Code of Civil Procedure and Section 115 of the
Evidence Act. Thereafter the discussion on the topic and caselaws relating to
the subject was made. After completion of discussions on criminal subject
summary of another paper on the subject “test identification parade,
appreciation of evidence under sections 3 and 8 of Evidence Act” was read.
Thorough discussions were made on both the subjects. Relevant caselaws were
discussed. The difficulties raised by the Judicial Officers were discussed and
solved.
QUESTIONS
Question No.1 : Whether the court can pass an order of
consolidation of both the suits ?
Ans : Since the main purpose of Section 10 is to avoid two
conflicting decisions, a court in an appropriate case
can pass an order of consolidation of both the suits.
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(Indian Bank v. Maharashtra State Coop. Marketing
Federation Ltd.,(1998) 5 SCC 69: AIR 1998 SC 1952).
Question No.2 : Whether the decree passed in contravention of
Section 10 is a nullity ?
Ans : A decree passed in contravention of Section 10 is
not a nullity and, therefore, cannot be disregarded in
execution proceedings. ( AIR 1969 Bom ).
Question No.3 : Whether the interim orders, such as, attachment
before judgment, temporary injunction ,
appointment of receiver, amendment of plaint or
written statement,etc. can be passed when the suit
is stayed under section 10 of the Civil Procedure
Code?
Ans : An order of stay of suit does not take away the
power of the court from passing interim orders.
Hence, in a stayed suit, it is open to the court to
make interim orders, such as, attachment before
judgment, temporary injunction, appointment of
receiver, amendment of plaint or written
statement, etc.
( Indian Bank v. Maharashtra State Coop. Mktg.
Federation Ltd.,(1998) SCC1952).
Question No.4 :Whether subsequent suit can be decided on merits ?
Ans : Section 10, does not take away power of the court
to examine the merits of the matter. If the court is
satisfied that subsequent suit can be decided purely
on legal point, it is open to the court to decide such
suit. (Pukhraj D. Jain v. G.Gopalakrishna, AIR2004
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SC 3504.
Question No.5 : Whether the identification of the accused for
the first time in the court is permissible in
law ?
Ans : Identification of accused for the first time in
the Court is permissible in law but said
principle has to be applied in the facts and
the circumstances of each case. ( 2015 CRI. L.J.
2944 SUPREME COURT) Ranjeet Kumar
Ram alias Ranjit Kumar Das v. State of Bihar.
Question No.6 : Whether the identification of the accused
through photograph is permissible instead of a
test identification parade.
Ans : Identification of the accused through
photograph can serve the same purpose as a
test identification parade. The Supreme
Court recognised this possibility by looking at
the practices of Interpol and other crime
detecting agencies for identification of
criminals engaged in drug trafficking,
narcotics and other economic offences and
also in other international crimes. In such
cases identification through photographs is
the commonly used method. (Laxmi Rai
Shetty v State of T.N.,AIR 1988 SC 1274 :
1988 Cr LJ 1783).
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Question No.7 : Whether the statement of accused recorded
under section 313 of Cr.P.C. Can be treated as
evidence ?
Ans : The statement of accused recorded under
section 313 of Cr.P.C. Cannot be treated as
evidence.
Section 10 deals with stay of civil suits. It provides that no court shall
proceed with the trial of any suit in which the matter in issue is also
directly and substantially in issue in a previously instituted suit between
the same parties and that the court in which the previous suit is pending
is competent to grant the relief claimed.
Section 11, on the other hand, relates to a matter already adjudicated
upon. It bars the trial of a suit or an issue in which the matter directly
and substantially in issue has already been adjudicated upon in a
previous suit.
Section 10 declares that no court should proceed with the trial of any suit
in which the matter in issue is directly and substantially in issue in a
previously instituted suit between the same parties and the court before
which the previously instituted suit is pending is competent to grant the
relief sought. (AIR 1998 SC 1952; Maharashtra State Coop. Marketing
Federation Ltd. v. Indian Bank, AIR 1997 Bom 186).
The rule applies to trial of a suit and not the institution thereof. It also
does not preclude a court from passing interim orders, such as, grant of
injunction or stay, appointment of receiver, ( Indian Bank v. Maharashtra
State Coop. Marketing Federation (1998) 5 SCC 69 ). etc. It, however, applies
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to appeals.
The object of the rule contained in Section 10 is to prevent courts of
concurrent jurisdiction from simultaneously entertaining and
adjudicating upon two parallel litigations in respect of the same cause of
action, the same subjectmatter and the same relief. The policy of law
is to confine a plaintiff to one litigation, thus obviating the possibility of
two contradictory verdicts by one and the same court in respect of the
same relief.
The section intends to protect a person
from multiplicity of proceedings and to avoid a conflict of decisions. It
also aims to avert inconvenience to the parties and gives effect to the rule
of res judicata. (S.P.A. Annamalay Chetty v. B.A.Thornhill, AIR 1931 PC 263; Shri
Ram Tiwary v. Bholi Devi, AIR 1994 Pat 76).
in any other court in India or in any court beyond the
limits of India established or continued by the Central
Government or before the Supreme Court.
(v) The court in which the previous suit is instituted must
have jurisdiction to grant the relief claimed in the
subsequent suit.
(vi) Such parties must be litigating under the same
title in both the suits.
discretion is left with the court. The order staying proceedings in the
subsequent suit can be made at any stage. (Life Pharmaceuticals (P) Ltd. v.
Bengal Medical Hall, AIR 1971 Cal 345).
Section 10, however, does not take away
power of the court to examine the merits of the matter. If the court is
satisfied that subsequent suit can be decided purely on legal point, it is
open to the court to decide such suit. ( Pukhraj D. Jain v. G. Gopalakrishna,
(2004) 7 SCC 251 : AIR 2004 SC 3504 ).
The test for applicability of Section 10 is
whether the decision in a previously instituted suit would operate as res
judicata in the subsequent suit. If it is so, the subsequent suit must be
stayed.
court.
Again, as stated above, it is only the trial
and not the institution of the subsequent suit which is barred under this
section. Thus, it lays down a rule of procedure, pure and simple, which
can be waived by a party. Hence, if the parties waive their right and
expressly ask the court to proceed with the subsequent suit, they cannot
afterwards challenge the validity of the subsequent proceedings.
Section 11
Section 11 of the Code of Civil Procedure
embodies the doctrine of res judicata or the rule of conclusiveness of a
judgment, as to the points decided either of fact, or of law, or of fact and
law, in every subsequent suit between the same parties. It enacts that
once a matter is is finally decided by a competent court, no party can be
permitted to reopen it in a subsequent litigation. In the absence of such
a rule there will be no end to litigation and the parties would be put to
constant trouble, harassment and expenses.
“The principle of res judicata is based on
the need of giving a finality to judicial decisions. What it says is that once
a res is judicata, it shall not be adjudged again. Primarily it applies as
between past litigation and future litigation. When a matter, whether on
a question of fact or a question of law, has been decided between two
parties in one suit or proceeding and the decision is final, either because
no appeal was taken to a higher court or because the appeal was
dismissed, or no appeal lies, neither party will be allowed in a future suit
8
or proceeding between the same parties to canvass the matter again.
(i) The doctrine of res judicata is conceived in the larger public
interest which requires that all litigation must, sooner than
latter, come to an end. (Lal Chand v. Radha Krishan, (1977) 2
SCC 88 : AIR 1977 SC 789 ).(ii) The principle is also founded
on justice, equity and good conscience which require that a
party who has once succeeded on an issue should not be
harassed by multiplicity of proceedings involving the same
issue. Section 11 of the Code contains in statutory form,with
illuminating explanations very salutary principle of public
policy. (Narayan Prabhu Venkateswara v. Narayana Prabhu
Krishna, (1977) 2 SCC 181 : AIR 1977 SC 1268).(iii) It
embodies the rule of conclusiveness and operates as a bar to
try the same issue once again. It hereby avoids vexatious
litigation. (Sulochana Amma v. Narayanan Nair,(1994) 2 SCC
14 : AIR 1994 SC 152; Workmen v. Board of Trustees, Cochin
Port Trust, (1978) 3 SCC 119 ).
The doctrine of res judicata is based on three maxims :
(a) nemo debet bis vexari pro una et eadem causa (no
man should be vexed twice for the same cause);
(b) interest reipublicae ut sit finis litium ( it is in the
interest of the State that there should be an end
to a litigation); and
(c) res judicata pro veritate occipitur ( a judicial
decision must be accepted as correct ).
The doctrine of res judicata differs from res sub judice in
two aspects :
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(i) whereas res judicata applies to a matter adjudicated upon
(res judicatum), res sub judice applies to a matter pending
trial (sub judice); and
(ii) res judicata bars the trial of a suit or an issue which has
been decided in a former suit, res sub judice bars trial of
a suit which is pending decision in a previously instituted
suit.
B.
Order 23, Rule 1 deals with withdrawal of
suits. It enacts that where the plaintiff withdraws the suit or abandons
his claim without the leave of the court, he will be precluded from
instituting a fresh suit in respect of the same cause of action.
The distinction between res judicata and
withdrawal of suit lies in the fact that while in the former the matter is
heard and finally decided between the parties, in the latter the plaintiff
himself withdraws or abandons his claim before it is adjudicated on
merits.
LAW OF ESTOPPEL :
The principle enunciated in Section115
of The IE Act, 1872 is that when a person has by his declaration, act, or
omission intentionally causes or permits another to believe a thing to be
11
true and to act upon such belief or supposition then, neither, he nor his
representative shall be allowed to deny truth of it. In brief, it means that,
when a person by his words or by his conduct represents to another that
certain state of things is true and induces him to act on that belief and
when the other person relying upon representation alters his previous
position, then, the person who represents it would be estopped from
denying the truth of his previous representation. If a person make wrong
statement with the knowledge of consequences, thereof, he would
ordinarily require to be estopped from pleading that, even, if a fact be
disclosed, it would not make any material change.
Even then, the doctrine of res judicata
differs in essential particulars from the doctrine of estoppel.
(i) Whereas res judicata results from a decision of the court,
estoppel flows from the act of parties.
(ii) The rule of res judicata is based on public policy, viz., that
there should be an end to litigation. Estoppel, on the other
hand, proceeds upon the doctrine of equity, that he who,
by his conduct, has induced another to alter his position to
his disadvantage, cannot turn round and take advantage of
such alteration of the other's position. In other words, while
res judicata bars multiplicity of suits, estoppel prevents
multiplicity of representations.
(iii) Res judicata ousts the jurisdiction of a court to try a case
and precludes an enquiry in limine (at the threshold);
estoppel is only a rule of evidence and shuts the mouth
of a party.
(iv) Res judicata prohibits a man averring the same thing
twice in successive litigations, while estoppel prevents
12
him from saying one thing at one time and the opposite
at another.
(v) The rule of res judicata presumes conclusively the truth
of the decision in the former suit, while the rule of
estoppel prevents a party from denying what he has once
called the truth. In other words, while res judicata binds
both the parties to a litigation, estoppel binds only that party
who made the previous statement or showed the previous
conduct.
Section 300 (1) of the Code of Criminal
Procedure, 1973 declares that a person who has once been tried by a
court of competent jurisdiction for an offence and convicted or acquitted
of such offence cannot be tried again for the same offence so long as the
acquittal or conviction operates.
Section 11 of the Code of Civil Procedure,
1908 enacts that once the matter is finally decided by a competent court,
no party to such proceeding can be allowed to reopen it in subsequent
litigation. The principle is also applicable to criminal proceedings and it
is not permissible in the subsequent stage of the same proceedings or in
subsequent proceeding to try a person for an offence in respect of which
he has been acquitted or convicted. ( Bhanu Kumar v. Archana Kumar, (2005)
1 SCC 787 : AIR 2005 SC 626; Swami Atmananda v. Sri Ramakrishna Taporanam,
(2005) 10 SCC 51).
decisions of a competent court of law and based on public policy.
There is, however, distinction between the
two. Whereas res judicata is based upon conclusiveness of judgment and
adjudication of prior findings, stare decisis rests on legal principles. Res
judicata binds parties and privies, while stare decisis operates between
strangers also and binds courts from taking a contrary view on the point
of law already decided. Res judicata relates to a specific controversy, stare
decisis touches legal principle. Res judicata presupposes judicial finding
upon the same facts as involved in subsequent litigation between the
same parties. Stare decisis applies to same principle of law to all parties.
The doctrine of res judicata also differs
from Order 2 Rule 2 of the Code; firstly, the former refers to a plaintiff's
duty to bring forward all the grounds of attack in support of his claim,
while the latter only requires a plaintiff to claim all reliefs flowing from
the same cause of action. Secondly, while the former rule refers to both
the parties, plaintiff as well as defendant, and precludes a suit as well as
a defence, the latter refers only to a plaintiff and bars a suit.
Section 11 is mandatory. The plea of res
judicata is a plea of law which touches the jurisdiction of a court to try
the proceedings. A finding on that plea would oust the jurisdiction of a
court. If the requirements of Section 11 are fulfilled, the doctrine or res
judicata will apply and even a concession made by an advocate will not
bind a party.
COMPARATIVE STUDY
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TEST IDENTIFICATION PARADE
Apart from section 9 of Evidence Act, we
did not have earlier any specific provision pertaining to test identification
parade. But by the amendment made in 2005 in Code of Criminal
Procedure, a new Section 54A pertaining to identification was inserted
which runs as follows :
"Where a person is arrested on a charge of committing
an offence and his identification by any other person or persons is
considered necessary for the purpose of investigation of such offence, the
Court, having jurisdiction, may on the request of the officerincharge of a
police station, direct the person so arrested to subject himself to
identification by any person or persons in such manner as the Court may
deem fit."
One of the methods of establishing the
identity of the accused is “test identification parade”. The idea of the
parade is to test the veracity of the witness on the question of his
capability to identify, from amongst several persons made to stand in a
queue, an unknown person whom the witness had seen at the first time of
the occurrence. It is only an aid to investigation. The practice is not borne
out of procedure but out of prudence. The purpose is to test and
strengthen the substantive evidence of the witness in the court. Such
evidence is used for corroboration.
particular case. The question of holding an identification parade would
arise only in event of the witness claiming to be in a position to identify a
person who she had not seen before the incident. The aspect of
identification parade belonging to the investigation stage, there is no
provision in the Code of Criminal Procedure which obliges the
investigation agencies to hold or confer a right upon the accused to claim
the same.
The condition precedent for accepting the
evidence of identification is that it should be fair and beyond reproach. It
should not only be fair but also seen to be fair and every precaution must
be taken to exclude any suspicion of unfairness or erroneous identification
through the witnesses attention being directed specially to the suspected
person instead of equally to all the persons being paraded. It is well settled
that the evidence of identification can only be relied upon if all the
chances of the suspects being shown to the witnesses prior to their test
identification are eliminated. To secure that, it has to be ensured that prior
to the test identification parade the suspect had not been shown to the
identifying witness. The prosecution needs to adduce link evidence to the
effect that right from the time of the arrest of suspects the victim had no
opportunity of seeing their faces and the identification was held in the
manner stipulated by the criminal manual issued by the High Court.
they could identify them by such memory in the Court. Where a parade of
this kind was held within two days of arrest under the supervision of a
Judicial Magistrate and with all the necessary precautions, the evidence so
obtained, the Supreme Court held, should not have been rejected on the
accused telling the Court that he was shown to the witnesses before hand.
All this is for the accused to prove . (Sone Lal v. State of U.P. AIR1978
SC 1142 : 1978 Cr.LJ1122);
The Magistrate has to satisfy himself that
the accused was not shown to the witnesses and that the parade was
otherwise fair and not a farce. Evidence of identity so obtained can in
circumstances be the sole basis of conviction. (Jugal Gopal v State of
Bihar, (1979) 3 SCC 272 : 1981SC 612). But generally such evidence is
only of supporting nature. It can be used as corroborative evidence. The
identification parade must be held by the investigating agency with
reasonable despatch. The identifying witness has to appear personally to
depose. It is not necessary for him to tell what role was played by the
person whom he identified. Where, identification parade is not held,
identification in the Court for the first time does not serve much purpose.
Where the conviction which was based on
the evidence of eyewitness which was found reliable, could not be set
aside on the ground that T.I. Parade was not reliable. ( Mullagiri Vajram
v State of A.P., AIR 1993 SC 1242 : 1993 Cr LJ 169). Prosecution
evidence cannot be rejected because of minor discrepancies and not
holding of T.I. Parade. (State of Karnataka v Deja Shetty, 1993
SCC(Cr) 242 : 1993 Supp (1) SCC 14).
was discarded on account of legal infirmities. ( Thambi Nasir v State
2003 Cr LJ493 (Bom).
Known persons can be recognised by the
timbre of their voice and gait. State v. Harishchandra Tukaram Awatade,
1997 Cr LJ 612 (Bom). Where the accused persons were close relatives of
the witnesses, it was held that they could be recognised even in the
absence of light by gait, timbre of voice etc. ( Shankar Sridhar Kavale v
State, 1998 Cr LJ 4491 (Bom), Shivaji Ganu Naik v State of
Maharashtra, 1999 Cr LJ 471 (Bom). There can be identification by the
shape of the body, gait, manner of walking, or even by voice. (Kedar
Singh v. State of Bihar, 1999 Cr LJ 601 : AIR 1999 SC 1481).
A week's delay in holding the parade was
held to be not a material delay. Two injured eyewitnesses identified the
accused in the parade. Where the witnesses did not identify the accused
in the first round, it was held that it was not a case of total non
identification, hence the importance of identification,could not be
minimised. Where the accused dacoits spent considerable time in the
house, giving ample opportunity to the witnesses to recognise them and a
delay of 20 days in
conducting T.I. Parade was explained, evidence of identification was
reliable. Evidence of identification of witnesses cannot be rejected merely
because they did not enumerate the features or marks of the accused.
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